"The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like. Nearly half a century ago, in Haupt v. United States, 330 U. S. 631 (1947), we rejected a contention similar to that advanced by Mitchell here. Haupt was tried for the offense of treason, which, as defined by the Constitution (Art. III, § 3), may depend very much on proof of motive."

My name is Brian Levin and I am an attorney and Director of the Center for the Study of Hate & Extremism at California State University, San Bernardino, where I am also a Professor of Criminal Justice. The Center conducts sophisticated research in the area of hate crime and domestic terrorism and provides this information and expertise to law enforcement agencies, legislatures, civil rights organizations, the media and educators. I want to thank the Committee on the Judiciary for the opportunity to render this testimony in strong support of S. 909, the Matthew Shepard Hate Crimes Prevention Act of 2009 (MSHCPA) sponsored by Senators Kennedy and Leahy.

When I first conducted research on the topic at the University of Pennsylvania some

twenty-three years ago under the mentorship of the Honorable A. Leon Higginbotham, and in my later research at Stanford Law School and the Southern Poverty Law Center, two key issues repeatedly emerged. First, there was a material gap in the coverage and effectiveness of federal civil rights law, and second, there was massive underreporting of these “bias,” or hate crimes. Since 1987 I advised Congress of this fact. Eleven years ago I joined now Attorney General Holder in urging this committee to enact many of the same changes we still seek today. The MSHCPA would remedy the defects present in the hodgepodge of criminal laws at the state and federal level that leave many innocent Americans without adequate protection. While we strongly believe states should be at the forefront of criminal prosecution, we also contend that it is essential for federal authorities to have the ability to intervene, when necessary, in circumstances and jurisdictions when there are compelling obstacles to criminal enforcement.

SEVERITY & EXTENT OF HATE CRIME

For the purposes of this testimony I define hate crimes essentially similar to the definition found

in Section 3 of the MSHCPA, as those criminal acts that are discriminatorily committed because of the actual or perceived group status of another. Each legislature establishes which group characteristic the law is to protect. These laws generally protect on the basis of race, religion, ethnicity and to a significantly lesser extent sexual orientation, gender, gender identity, disability, political affiliation and homeless status. From a criminological standpoint hate crimes are far more prevalent and dangerous than previously thought. While official reported data has been fairly consistent over the last several years, the diminishing quality of the data means that many victims are overlooked, and that some trends may not be readily apparent. This is an important issue, as it indicates that there are still significant problems in many parts of the country with the response to these serious offenses by some state and local authorities.

The latest 2007 FBI hate crime data of 7,624 reported incidents mean that there is approximately one reported hate crime almost every hour. However, this number drastically undercounts the actual number of cases in the United States. A 2005 Bureau of Justice Statistics victimization survey indicates that the actual annual number of victimizations is far higher at about191,000. Moreover, the reported state data submitted to the FBI itself indicates that many states simply are not reporting hate crimes accurately. This is key as identification of incidents themselves is the crucial first step to resolution and prosecution of cases. Hawaii, for instance did not participate at all in the federal reporting program. Moreover, three of the five states with the highest proportion of African-Americans, who account for 35% of all reported hate crimes nationally, barely reported hate crime at all.

Mississippi, 38% African-American, 0 hate crimes

Louisiana, 32% African-American, 31 hate crimes

Georgia, 31% African-America, 13 hate crimes

Contrast these totals with that of South Carolina, a state in the same region with similar demographics and a total population almost the same as Louisiana and half that of Georgia’s. South Carolina, has over one million African American residents comprising 29% of the state’s total population. The state reported 127 hate crime in 2007. In 2007 Boston, with a dedicated police hate crime unit and a population of 500,000, counted more hate crime cases than Georgia, Alabama, Arkansas, Louisiana, and Mississippi combined.

Also disturbing is the diminishing participation by other states with large and diverse populations. Illinois reported 348 hate crimes in 1996 through 113 participating law enforcement agencies. By 2007 the state reported only 167 incidents from only 60 agencies. Other states “participate” but merely collect forms showing “zero” hate crimes from various counties and municipalities.

Because of the unique severity of hate crime, its discriminatory nature, and its effects across state borders, it is thoroughly appropriate for federal laws to specifically punish and deter them. Over two decades of data collection from a variety of reliable sources have produced a much more clear picture of the dangers of hate crime. Hate crimes are directed against persons about 70% of the time. Non-hate crimes, by contrast, are directed against persons only 11 percent of the time. Center Advisory Board members Northeastern University professors Jack McDevitt and Jack Levin found that hate motivated assaults are twice as likely to cause injury and four times as likely to result in hospitalization as assaults in general. In addition, law enforcement data and other respected academic studies, establish that hate crimes are more likely to involve groups of assailants, escalating serial attacks (often against the same target), a heightened risk of civil disorder and retaliatory violence, greater psychological trauma to victims and a greater expenditure of resources to solve cases.

STATUS & INADEQUACY OF PRESENT LAW

The laws of about 45 states and several federal criminal statutes are applicable to hate crimes

under certain limited circumstances. The Supreme Court has consistently upheld

these types of state and federal civil rights laws. See Wisconsin v. Mitchell, 508 U.S. (1993) (Court upholds state hate crime penalty enhancement law.); United States v. Price, 383 U.S. 787 (1966) (Court affirms broad application of criminal civil rights conspiracy law); Screws v. United States, 325 U.S. 91 (1945) (Court affirms conviction of policeman under 18 U.S.C. 242 for killing an African-American). Furthermore, the federal government as a separate sovereign has the legal authority to enforce statutes that may punish the same conduct as some state laws. See United States v. Lanza, 260 U.S. 377 (1922); Abbate v. United States, 359 U.S. 187 (1959).

The applicability of federal laws is limited by two basic elements. The first required element relates to the type of victim group that is protected such as race or religion. The next element relates to the type of activity undertaken by the victim that is protected or the type of criminal conduct of the offender that is proscribed. For instance 18 U.S.C. 245 only addresses the violation of a specifically enumerated right such as voting or employment. Some state laws only enhance certain types of criminal conduct such as assaults and vandalisms but not other offenses motivated by hate.

While nearly all state hate crime laws punish discriminatory crimes based on race, religion, and ethnicity only about half the states protect on the basis of gender or disability. About thirty states protect on the basis of sexual orientation, and far fewer on the basis of other characteristics. Moreover, there is no broadly applicable federal hate crime law, and existing federal criminal civil rights statutes, with one narrow exception (The Hate Crime Sentencing Enhancement Act of 1994, Pub. Law 103-322, § 280003) completely exclude protection on the basis of gender, gender identity, sexual orientation and disability. The idea that the federal government increasingly and unnecessarily intervenes in hate crime cases is simply not borne out by the facts, and there is no indication that this law would materially redefine the federal government’s limited role. From 1998 to 2005 the number of civil rights criminal cases, which includes hate crimes as a subset, opened by the FBI actually dropped from over 2000 to around 500. The number of federal racial violence/hate crime cases declined from over 200 in 1998 to around 75 by 2005.

Forcible Interference with Civil Rights: 18 U.S.C. 245, the primary federal criminal civil rights law and target of HCPA reforms, was enacted in 1968 as a result of brutal attacks on civil rights activists in the South. Its application to hate crime attacks is severely limited by its restriction of which groups are covered and which rights it protects. At best it protects only on the basis of race, color, religion, and national origin. Furthermore, it requires an interference with a right specifically referenced in the statute such as voting or employment. Companion statutes that protect a more open ended set of rights are limited in application because they require such things as conspiracies or the involvement of government officials in the offense. 18 U.S.C. 241, 18 U.S.C. 242.

A NEW BREED OF VIOLENCE

When 18 U.S.C. 245 was enacted forty years ago African-Americans were frequently attacked to prevent them from exercising particular rights such as voting, jury service or use of public accommodations. Even though today's attacks are also symbolic, they are also far more random- generally instilling widespread terror, rather than targeting the exercise of a single specific civil right.

While most hate crime offenders today, perhaps 90%, are not hard core hatemongers or members of organized hate groups, these extremists are disproportionately represented in the most violent attacks on religious and ethnic minorities, gays, and other symbolic targets. Many violent extremists are agitated by the election of President Obama, immigration and increasing diversity, the financial crisis, and a perceived erosion moral traditions. Over one third of hate motivated homicides appear to be the work of hard core hatemongers. While no clear trend has yet been established with respect to hate crime overall with available data from 2007 and 2008, there appears to be an increase in the most extreme forms of hate violence. Hate crime homicides in 2007 tripled to nine from three a year earlier. The Southern Poverty Law Center counted a record 926 hate groups in the United States in 2008. Today’s hard core hatemongers follow a different script than their civil rights era predecessors. They are not only armed, but use computers for social networking and research. They often cross state lines. As I wrote in November 2008 about the risk of far right extremists:

“the current shift is to a more decentralized assortment of people who prefer the anonymity of the Internet for their hate education, inspiration and social networking. It is in this decentralized group of loners and small cells that an additional stealth threat arguably resides. Unstable lone bigots or anonymous small cells, with varying degrees of competency, operate on the fringes of established organizations. They are motivated by a vast array of vitrol to act out violently against a litany of enemies demonized in the supremacist freelance doctrine of leaderless resistance”

Fort Walton, FL Apr. 28, Army reservist Joshua Cartwright, 21, who believed there was a government conspiracy against him allegedly kills two Okaloosa County Sherff’s Deputies following a domestic dispute

Middletown, CT May 6, Stephen Morgan, 29, who wrote of killing Jews, allegedly killed a Jewish Wesleyan student with whom he was obsessed.

New York, NY May 20, Four Muslim converts are arrested on federal charges relating to a plot to bomb Jewish and military targets.

Pima County, AZ May 30 Leaders of the Minuteman American Defense group allegedly kill a 29 year old suspected drug dealer and his nine year old daughter in an attempt to steal drugs and money to finance their civilian border patrol group.

As I stated to this committee over ten years ago, many extremists subscribe to a strategy called leaderless resistance, popularized in the Neo-Nazi tract, The Turner Diaries and by former Ku Klux Klansman Louis Beam. Leaderless resistance encourages random acts of violence, not just on public activists, but on all minorities, by either lone assailants or small tightly knit cells. Extremists other than white supremacists embrace similar tactics as well. This obviously makes it harder to apply the more open-ended federal civil rights conspiracy law, 18 U.S.C. 241. Some racists are still influenced by Christian Identity, the bigoted religion of white supremacy, which preaches that Jews are the spawn of Satan and African-Americans subhuman or similar theologies. Bigoted extremists today now include others on their list of enemies. Feminists, gays, biracial individuals, immigrants and the disabled have no place in their vision of a perfect Aryan society. One ex-Aryan Nations official confided to me that after the nation was rid of blacks, Jews, progressives, the disabled were next on their list.

Unfortunately, this more expansive message of hate has gained currency not just among extremists,

but in the mainstream as well, where it is often galvanized by portrayals in

the media. These negative and dehumanizing stereotypes then fuel other hate attacks from less ideological offenders-ranging from thrill seeking young people trying to gain validation from their peers to disenfranchised adult loners. For example, immigrants and gay Americans, are increasingly singled out for attack from a vast spectrum of assailants ranging from skinheads to roving bands of armed high school students. Last year, for example, the National Coalition of Anti-Violence Programs identified 29 murders because of sexual orientation or gender identity, a 28% increase form the year before and the most since 1999. We have also seen disturbing attacks, including killings, of immigrants and transgendered people across the country, as well as the disabled. A homeless wheelchair bound man was set ablaze in Spokane not long ago, and just released 2008 Virginia figures show an increase in attacks against the disabled.

And while today's hateful assailants and their violent methods of attack have evolved, the laws designed to protect Americans have remained stagnant. The current limitations put federal prosecutors at a distinct disadvantage. Consider the 1980 shooting of Vernon Jordan, then President of the National Urban League. Jordan was shot in the back and critically wounded after emerging from a car with a white female assistant in Fort Wayne, Indiana in what President Jimmy Carter called "an assassination attempt."

The defendant in the case, avowed white supremacist serial killer Joseph Paul Franklin was acquitted of violating 18 U.S.C. 245, even though jurors subsequently admitted that they believed Franklin shot Jordan because he was African-American. The reason for the acquittal: the prosecutors could not establish that the assassination attempt was intended to specifically interfere with Jordan's use of a public accommodation- the Fort Wayne Marriot Hotel.

in California opted to use only weapons and explosives charges against a group of Nazis who plotted to machine gun the parishioners of a Black church and assassinate civil rights leaders. Using existing federal civil rights law was just too risky and difficult, a prosecutor confided to me. Former Assistant Attorney General Drew Days III, in Congressional hearings as far back as 1980 testified: "One would think, and I think most people in the United States do believe, that it is a federally protected and constitutional right to live, and that if one's life is taken by another person because one is black, Hispanic or some minority group, then that constitutes a violation of federal law...[b]ut it is my considered judgment that this type of violence can take place without running afoul of federal statutes."

EXPANDING GROUP COVERAGE

Expanding protectionof the criminal civil rights law to gays and lesbians, women, transgendered

people and the disabled is thoroughly consistent with the aims of hate crime law generally. Hate crimes do not express "hatred" per se and these laws do not punish expressions of abstract bigotry- which are constitutionally protected. Hate crimes really are the discriminatory use of violence to enforce a particular social hierarchy- one where the roles and status of victims and their groups are degraded and threatened. This discriminatory violence is not worse merely because victims face a heightened risk of injuries and future attacks. These crimes are also worse because they threaten whole groups of people from meaningful participation in our society because of who they are. Thus, they our crimes against our national community.

Our research is replete with examples of people who are targeted for discriminatory violence because of their gender, gender identity, sexual orientation and disability. Still, their unique vulnerability and the negative stereotypes relating to them make them entirely proper for coverage by these reforms.

We do have a more clear picture of gender based attacks. For example, Canadian Marc Lepine segregated and murdered fourteen female engineering students at a university in 1989. Before shooting himself he left a note blaming women and feminists for his problems. Some of our nation's worst serial killers sought out women to kill during multi-state murder sprees. Women are over nine times as likely to be murdered by men than by other women. Certainly, many of these crimes were committed in large part because of gender. The fact that many female victims know their assailants does not in and of itself preclude hate crime status. While many hate crimes do involve stranger attacks, we have never held that particular element as a preclusive identifying factor. To do so would irrationally preclude the brutal murder of James Byrd over a decade ago as a hate crime merely because he knew one of his alleged assailants.

According to the FBI gays and lesbians account for about 12 percent of the hate crimes committed

every year and recent studies establish that they face a high risk of criminal

victimization merely because they are perceived to be gay or lesbian. Many anti-gay hate and transgender motivated crimes involve bands of roving assailants hunting down random "gay looking" victims with weapons such as tire irons, baseball bats and bricks. Some mistakenly contend that punishing violent thugs who brutalize gays promotes homosexuality. Yet, no one has seriously argued that anti-church arson laws impermissibly promote religion, or laws against involuntary servitude encourage illegal immigration.

CONCLUSION

Most hate crime violations are prosecuted at the state level and we have no desire to "federalize" an unlimited array of crime. Federal prosecutors only intervene in those cases of overriding national concern or where local enforcement is highly flawed. However, much of the act’s potency, lies not in what it punishes, but rather in itsrecognition of the primary

role local authorities now play in combating hate crime. Nearly all hate crime

investigations and prosecutions in the United States are handled by state and

local authorities. Gone are the days, where masses of federal agents and soldiers have had to swoop into states to protect new students and freedom riders from thugs in Klan dominated municipalities. The MSHCPA has a clear bias in favor of local prosecution and has restrictions that require federal prosecution only in limited cases where the leadership of the Department of Justice approves. However, reporting data indicates that some states apparently provide limited assistance to hate crime victims. Thus, there appear to be various circumstances where federal help or prosecution are still necessary.

Today, in the midst of our economic downturn, federal authorities are needed much more to assist cash-strapped local departments not as an unwelcome occupying force, but as a desperately needed partner to assist with forensics, technical assistance, and investigations. Even in police departments with model hate crime investigative units, such as the Boston Police Department’s Community Disorders Unit, modern cases increasingly involve interstate travel or internet hate networks, and require sophisticated ballistic and DNA testing or computer forensics. These measures may be beyond the capacity of many local police agencies particularly, in difficult economic times. The MSHCPA also provides greater access to local communities for federal training programs and mediation services that can prevent hate crimes before they boil over in to violence.

But there is something more to hate crime's harms that cannot be completely captured by

statistics or criminological studies. As the recent attack at the United

democracies in a way that other crimes do not. Unlike many other crimes they are at once discriminatory and terroristic. As law professor James Weinstein observed: "The effect of Kristallnacht on German Jews was greater than the sum of the damage to buildings and assaults on individual victims.” Violence and threats that destabilize the bonds between citizens and the democratic institutions that they share are worthy of additional punishment and federal assistance. Moreover, victims of hate motivated violence are entitled to legal protection no matter where they reside. That is why over two thirds of the American public favor hate crime laws, and why the Senate should heed their call to pass the MSHCPA. Thank you.

About the Center

The CENTER FOR THE STUDY OF HATE AND EXTREMISM at California State University, San Bernardino is a nonpartisan research and policy center that examines the ways that BIGOTRY, advocacy of extreme methods, or TERRORISM, both DOMESTICALLY and INTERNATIONALLY deny civil or HUMAN RIGHTS to people on the basis of race, ethnicity, religion, gender, sexual orientation, disability or other relevant status characteristic.
We are fiercely NON PARTISAN and seek to promote discourse and debate.
We study and vigorously OPPOSE the following:
Censorship: Attempts by government and academia to limit or criminalize speech or a free press because some regard the expression as offensive, bigoted, blasphemous, politically unpopular or unpatriotic. However, we vigorously exercise our right to expose and condemn.
Violence: Those who use, advocate, or glorify extrajudicial violence as a means to achieve social or political change
Bigotry;
Attacks on Pluralistic Democracy:Efforts to undermine the ideals, processes and institutions of our pluralistic democracy.
Falsehoods: The tactical injection of baseless falsehoods and conspiracy theories into discourse.